THE REPORT FROM WASHINGTON

Kagan blows fundamental judicial question

Ellis Washington is a former staff editor of the Michigan Law Review and law clerk at the Rutherford Institute. He is a professor of Constitutional Law, Legal Ethics, and Contracts at the National Paralegal College, a counselor at the American College of Education, and a founding board member of Salt and Light Global. Washington is a co-host of "Joshua's Trial," a radio show of Christian conservative thought. A graduate of John Marshall Law School and post-grad work at Harvard Law School, his latest law review article is titled, "Social Darwinism in Nazi Family and Inheritance Law." Washington’s latest book is a 2-volume collection of essays and Socratic dialogues – "The Progressive Revolution" (University Press of America, 2013). Visit his popular law/political blog, "EllisWashingtonReport.com, an essential repository dedicated to educating the next generation of young conservative intellectuals.

A free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate.

~ Thomas Jefferson

The Senate Judiciary hearings for President Obama’s Supreme Court nominee, Elena Kagan, revealed perhaps the pivotal constitutional question of modern times: Is there a Higher Law that is the foundation of all our fundamental rights … law that transcends even the Constitution? The Founding Fathers answered this question in blood and staked their lives and their sacred honor on this very principle by waging a protracted war against Great Britain, the superpower of the 18th century.

Look at the Ninth and 10th Amendments, which essentially incorporates the Declaration of Independence (natural rights) into the Constitution. On this point Harvard historian Bernard Bailyn gave a speech at the White House in 2000 on the subject of the Ninth Amendment. Professor Bailyn said that the Ninth Amendment refers to “a universe of rights, possessed by the people – latent rights, still to be evoked and enacted into law … a reservoir of other, unenumerated [natural] rights that the people retain, which in time may be enacted into law.”

During the Kagan Supreme Court hearings, an interesting exchange occurred on this very question of natural rights when Elena Kagan sidestepped Sen. Tom Coburn’s question of whether she believes Americans have a “fundamental, pre-existing” right to bear arms, choosing instead to say she would follow the law. Here is their exchange:

Kagan: To be honest with you, I don’t have a view of what are natural rights, independent of the Constitution, and my job as a justice will be to enforce and defend the Constitution and other laws of the United States.

Coburn: I’m talking about Elena Kagan. What do you believe? Are there inalienable rights for us? Do you believe that?

Kagan: I think that the question of what I believe as to what people’s rights are outside the Constitution and the laws, that you should not want me to act in any way on the basis of such a belief.

I think you should want me to act on the basis of the law.

Obviously, Kagan’s handlers anticipated this Higher Law line of questioning and gave her an answer that had a constitutionalist ring to it; however, it’s all sophistic rhetoric.

Is partial-birth abortion an inalienable natural right, according to Elena Kagan?

Judge Andrew Napolitano, a legal commentator on Fox News, wrote about our inalienable natural rights in his 2006 book, “The Constitution in Exile”:

The Bill of Rights consists of ten amendments that, like the Constitution itself and the Declaration of Independence before it, are grounded by Natural Law. These ten amendments are designed to protect individual freedoms that the founders considered natural rights, thus God-given, but feared that the new federal government might ignore. The Bill of Rights is supposed to prevent the federal government from denying these fundamental rights to any person. They reflect human nature in the absence of a tyrannical government.

Why is Kagan faking being a constitutionalist? (“[O]utside the Constitution and the laws … you should not want me to act in any way on the basis of such belief.”) Liberal judicial activism, including radical right to privacy, the incorporation doctrine, the living-Constitution doctrine, are ipso facto perversions of the Constitution. Kagan will certainly engage in social justice (Marxism) in the tradition of a Brennan, Blackmun, Marshall and Ginsburg: justices who throughout their entire judicial careers showed utter contempt against the Constitution.

There is very little black-letter law written in the Constitution that a liberal legal academic like Kagan or a liberal activist judge actually believes – otherwise they wouldn’t work so hard to make unconstitutional what is plainly written in the text while legitimizing constitutionally bizarre ideals of radical social policy like separation of church and state, FDR and LBJ’s welfare state, denying corporations free-speech rights, radical gun control, abortion, gay marriage, the primacy of international law over the Constitution, amnesty for illegal aliens, federal takeover of private industry and being anti-states’-rights, just to name a few.

Make no mistake about it: Kagan is nothing less than an Obama shill. Her radical judicial views on social justice (Marxism) will do exceeding harm to the Constitution by reflecting Obama’s fanatical hatred of America – a comprehensive judicial policy of vengeance against a country and a Constitution he has sworn to uphold and protect, yet utterly despises.

Remember that despite Kagan’s ignorance and mockery of natural rights found in the Declaration (“the law of Nature and of Nature’s God”; “Life, Liberty and the pursuit of Happiness”), without them none of the other enumerated rights in the Constitution could exist – for either rights come from God, or rights come from the State.

If the State gives rights, the State will take them away.

I believe Kagan to be an intellectual lightweight with an unremarkable judicial and academic record who was cynically put on the fast track to the high court because she, like President Obama and his former nominee, Justice Sotomayor, wants to put America on her knees domestically and internationally and, through their progressive judicial activism, has vowed to pervert the Constitution at every opportunity.

We can only hope that the GOP will filibuster Elena Kagan’s Supreme Court nomination and force Obama to choose someone who understands and respects the Constitution, judicial restraint and natural rights, which, in the words of Thomas Jefferson, are “derived from the laws of nature, and not as the gift of [the people’s] chief magistrate.”

These inalienable and sometimes unenumerated natural rights under this republic are the fundamental liberties all mankind enjoys, not by virtue of the State, but by our very humanity as holy creations of God.